Showen v. Metropolitan St. Ry. Co.

• Decision Date: 14 June 1915
• Docket Number: No. 11658.,11658.
• Citation: 177 S.W. 791,191 Mo. App. 292
• Parties: SHOWEN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

177 S.W. 791

191 Mo. App. 292

SHOWEN v. METROPOLITAN ST. RY. CO.

No. 11658.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Rehearing Denied July 2, 1915.

Appeal from Circuit Court, Jackson County ; D. E. Bird, Judge.

Action by John A. Showen, administrator, against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John H. Lucas and L. A. Laughlin, both of Kansas City, for appellant. Ed. E. Aleshire and J. A. Showen, both of Kansas City, and R. S. Robertson, of Sedalia, for respondent.

ELLISON, P. J.

Plaintiff's intestate, Cyrus C. Armstrong, was injured while attempting to alight from one of defendant's street cars on which he was a passenger. The deceased instituted an action for damages. He died before judgment was rendered, and plaintiff was appointed his administrator. Plaintiff then became a party and filed an amehded petition, and on trial recovered judgment. This judgment was reversed by this court. 164 Mo. App. 41, 148 S. W. 135. Another trial was had, and plaintiff again recovered. Defendant then appealed to the Supreme Court, and that court transferred it here.

Defendant introduced one Rardin as a witness in its behalf. In cross-examination plaintiff's counsel confronted him with his deposition taken in a former trial, or with his evidence as contained in the bill of exceptions taken at the former trial (counsel have not stated which), and asked him if he did not make certain statements therein at the former trial, and then introduced these selected statements in evidence. This was objected to, but permitted by the court. Counsel should have read the whole of his evidence on that particular subject. For other parts of it might have made consistent what otherwise would appear to be contradictory. Prewitt v. Martin, 59 Mo. 325, 334; State v. Stein, 79 Mo. 330, 332; State v. Matthews, 88 Mo. 121, 125; Wilkerson v. Eilers, 114 Mo. 245, 251, 21 S. W. 514. If counsel had merely exhibited the deposition to the witness and asked him if he had not made certain statements therein, and then have failed to have introduced the deposition, thus leaving the jury to infer that the witness was sight, perhaps no harm would have been done under the view expressed by the Supreme Court in State v. Matthews, supra. But, as we have stated above, plaintiff, over defendant's protest, introduced in evidence the small part selected by him. It was a violation of a fundamental rule of evidence. The deposition should have been shown to the witness, and the whole of it, or that part relating to the subject in hand, should have been introduced. Then any special pertinent questions could have been asked.

For the purpose of discrediting the testimony of...